People v. Ponto

• Decision Date: 29 October 1984
• Citation: 103 A.D.2d 573,480 N.Y.S.2d 921
• Parties: The PEOPLE, etc., Appellant, v. Landrah PONTO, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 921

480 N.Y.S.2d 921

103 A.D.2d 573

The PEOPLE, etc., Appellant, v. Landrah PONTO, Respondent.

Supreme Court, Appellate Division Second Department.

Oct. 29, 1984.

John J. Santucci, Dist. Atty., Kew Gardens (Thelma Lee, Kew Gardens, of counsel), for appellant.

Joseph R. Maddalone, Jr., Mineola, for respondent.

Before LAZER, J.P., and THOMPSON, WEINSTEIN and EIBER, JJ.

WEINSTEIN, Justice.

We are called upon on this appeal to determine the constitutional validity of a seizure of physical evidence subsequent to a warrantless entry by police into a defendant's furnished room based upon the homeowner's representation that defendant had therein a gun with which he had threatened her. At the time of the entry, defendant was substantially in arrears in his weekly rental payments. Necessarily subsumed in our analysis is the question of whether he had a legitimate expectation of privacy with respect to the room so as to entitle him to suppression of the physical evidence seized therefrom. In our view, that question must be answered in the affirmative. Inasmuch as the record reveals that defendant was still legally a lessee of the subject premises, who thus had a reasonable expectation of privacy with regard to his living space, we conclude that the police acted improperly in pursuing the course of action they did.

The facts are essentially undisputed. A Queens County Grand Jury charged defendant with the crime of criminal possession of a weapon based upon the discovery by the police of an automatic handgun in a closet of his rented room. Complainant, the owner of the one-family home in which defendant rented a room at the weekly rate of $50, summoned the police to her home on the evening of August 10, 1982, claiming that defendant had threatened her with a gun. The altercation arose when defendant offered her $60 in rent arrears. She complained that he had failed to pay her for 11 weeks and that she would deny him access to his room until he made a more substantial payment. Defendant thereupon demanded the return of his $60. When complainant refused to comply, he began to swear and to make threatening gestures towards her. He declared that he would break down the door of the room and blow off her head with his gun.

Complainant knew that defendant had a gun in his room since he had threatened her daughter with it some two weeks previously. Defendant's girlfriend had, at that time, warned complainant to call the police since defendant was dangerous and had once shot a man. Complainant had seen the gun a second time on August 9, 1982 as she was packing up defendant's belongings because he had failed to pay his rent. On that occasion, she also saw bullets all over the room.

After defendant threatened complainant on August 10, 1982, she ran upstairs and telephoned the police. Officer O'Callaghan and his partner, who were in a marked radio motor patrol car, responded to the radio call. When they arrived at the location, defendant was standing outside the house. The police did not at that point know if defendant was involved in the reported incident. Officer O'Callaghan nevertheless directed defendant to remain outside with his partner while he went into the house to speak with the complainant. Complainant revealed that defendant had threatened her verbally and she repeated the substance of the threat to Officer O'Callaghan. After ascertaining that the altercation emanated from a landlord/tenant matter, he inquired concerning the gun. Complainant stated that the gun was not on defendant's person but that it was in his room. She then offered to show the officer where the gun was kept.

Upon finding the door to defendant's room locked, complainant unlocked it with her key, and Officer O'Callaghan followed her into the room. Complainant indicated that the gun was in a box located on a shelf within a portable metal closet. The closet doors were open and the gun was visible inside an uncovered cardboard box. Also in the box were approximately 12 loose rounds of ammunition. Officer O'Callaghan took the gun, holster and ammunition and vouchered said property. At no point had the police obtained a search warrant.

Criminal Term granted defendant's motion to suppress the use of the gun as physical evidence on the grounds that its seizure by the police was unreasonable, improper and in direct contravention of the Fourth Amendment of the United States Constitution. The People appeal from said order.

It is a well-established tenet of criminal law that a warrantless search of a private dwelling is abhorrent to our system of government absent certain limiting circumstances (see Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081; Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145; Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746). Such searches are regarded as illegal even in situations where the police have a well-founded belief that an article sought is concealed in the dwelling searched (Agnello v. United States, supra ).

More recently, the United States Supreme Court has come to focus upon an individual's reasonable expectation of privacy in the area searched since "the Fourth Amendment protects people, not places" (Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576). Accordingly, it is now well-settled that in order for a defendant to have standing to challenge the legality of a search and seizure, that defendant must demonstrate a reasonable expectation of privacy in the area searched (United States v. Salvucci, 448 U.S. 83, 85, 100 S.Ct. 2547, 2549, 65 L.Ed.2d 619; Rawlings v. Kentucky, 448 U.S. 98, 104-106, 100 S.Ct. 2556, 2561-2562, 65 L.Ed.2d 633; Rakas v. Illinois, 439 U.S. 128, 148-149, 99 S.Ct. 421, 432-433, 58 L.Ed.2d 387, reh. den. 439 U.S. 1122, 99 S.Ct. 1035, 59 L.Ed.2d 83; People v. Ponder, 54 N.Y.2d 160, 166, 445 N.Y.S.2d 57, 429 N.E.2d 735; People v. Henley, 53 N.Y.2d 403, 407-408, 442 N.Y.S.2d 428, 425 N.E.2d 816; People v. Butler, 90 A.D.2d 797, 798, 455 N.Y.S.2d 647, app. dsmd. 58 N.Y.2d 1056, 462 N.Y.S.2d 628, 449 N.E.2d 408; People v. McCloud, 81 A.D.2d 645, 646, 438 N.Y.S.2d 151).

It has been held that third-party consent is a recognized exception to the Fourth Amendment warrant requirement (United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 993, 39 L.Ed.2d 242; People v. Henley, 53 N.Y.2d 403, 409, 442 N.Y.S.2d 428, 425 N.E.2d 816, COOKE, Ch. J., dissenting in part; People v. Cosme, 48 N.Y.2d 286, 290, 422 N.Y.S.2d 652, 397 N.E.2d 1319). Said exception requires the voluntary consent of a person possessing common authority over or other sufficient relationship to the premises or effects sought to be inspected (Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564, reh. den. 404 U.S. 874, 92 S.Ct. 26, 30 L.Ed.2d 120; People v. Cosme, supra, 48 N.Y.2d p. 290, 422 N.Y.S.2d 652, 397 N.E.2d 1319). Thus, the consent of a defendant's brother to the search of a bedroom occupied by the defendant and his wife was invalid (People v. Petrie, 89 A.D.2d 910, 911, 453 N.Y.S.2d 725; cf. People v. Remo, 98 A.D.2d 843, 844, 470 N.Y.S.2d 825 People v. Battee, 94 A.D.2d 935, 463 N.Y.S.2d 954 ).

In the instant case, complainant's consent to the police officer's entry into defendant's bedroom must be viewed as invalid inasmuch as it is clear from the record that defendant was a lessee of the subject premises. As such, complainant lacked the authority to consent to the police entry into defendant's private living space.

The prevailing rule in this and a number of other jurisdictions is that the lessor of real or personal property lacks the requisite authority to consent to a warrantless search of the leased property (People v. Wood, 31 N.Y.2d 975, 341 N.Y.S.2d 310, 293 N.E.2d 559; People v. McNeeley, 77 A.D.2d 205, 433 N.Y.S.2d 293; People v. Stadtmore, 52 A.D.2d 853, 382 N.Y.S.2d 807; People v. Mullgrav, 25 A.D.2d 784, 269 N.Y.S.2d 540; see, also, State of Arizona v. Carrillo, 26 Ariz.App. 113, 546 P.2d 838; State of Louisiana v. Abram, 353 So.2d 1019 cert. den. 441 U.S. 934, 99 S.Ct. 2058, 60 L.Ed.2d 663; Commonwealth of Massachusetts v. Weiss, ...